tv Inside Story Al Jazeera February 16, 2016 11:30pm-12:01am EST
second longest sporting show in the united states after the kentucky derby. >> i'm antonio mora, thank you for joining us. 2004 is up next about inside story. have a great night. >> before saturday, a surprising number of americans couldn't name a single supreme court justice. for the next couple of months, you might have to move to another country to hang onto that status. the death of justice anthony scalley a. and a process to even consider a replacement means a maelstrom and a daily impact on the importance of an american institution and daily life. disorder in the court, it's the "inside
story". welcome to "inside story," i'm ray suarez. article two of the u.s. institution spells out the responsibilities and powers of the president when it comes to filling vacancies like the one left by the death of associate justice, scalia. he shall have power by and with the advice of the senate to make treaties, by 2/3 of the senate concur, and he shall nominate it, and with by the senate, shall appoint ambassadors and ministries and consuls: straightforward, he shall have power by and with the add invitation of the senate.
while much of the country was still digesting the news that the longest serving supreme court justice windows dead, the hill staff and mitch mcconnell himself suggested that the president w.11 months to go in his term, shouldn't bother picking a replacement for scalia because the senate wasn't going to confirm that person, period. don't use your article two power, because we're going to tell you straight out we're not going to give you our advice or consent. so let's assume for ta moment that they stick to their guns. the president said that he is going to go ahead with the nomination, and the senate leader said that they don't exist for that nominee's membership northwest court. now, as the court reconvenes, year. what will that mean for the things that the country's top appellate court has to do?
consider case, vote on opinions, write, and we asked if there will be disorder in the court at this time on the program. and reporting on cases already in the high court's pipeline. >> reporter: one of the most conservative voices on the u.s. supreme court silenced with the death of justice scalia. the balance has shifted with four conservative and six liberal. like with affirmative action, and perspective student, abigail fisher, sued the university of texas, blaming the school's policy of holistic review. making ris a factor with applicants. justice scalia played a major role in december and drew
criticism after saying that black students may do better in fast track institutions. >institutions scalia's vote may have ensured a win for fisher, for affirmative action in institutions. another key issue, the affordable care act, coming up next month. the plaintiffs argue that non-profits should be forced to pay for insurance plans. that is mandated by the affordable care act. justice scalia would have made it in their favor, but it's a tie, which means that the obama mandate will stay in place. and also, the power of united nations, with the california labor association. the plaintiffs are the public schoolteachers who say that they should not have to pay
union dues, even if they take advantage of the benefits. >> they have forced me to fund collective bargaining efforts students. >> it could have gutted the power of public employee unions. but justice scalia's absence may have tied a 4-4 vote and will have no change in the existing system. >> so order in the court? that's this time on the program. joining me now, deputy associate attorney general in the reagan administration, and the life and death struggle for our constitution and democracy. he has argued cases before the supreme court. and of defense fund. i am not an suggesting that it is unprecedented, that we have not had eight members before.
but it's a peculiar situation, where everyone is understood to be wearing either blue shirts or red shirts under their black rocks. >> i'm not sure that this is the first time that you've had a divided court, 5-4 position, dominating, and that has been true for many years since chief justice warren burger was appointed in 1969. i think that there's not necessarily going to be disorder. a large percentage of the supreme court's zises are unanimous, and difficult ones are sometimes 5-4, but in this instance, the court could carry over a rearguing of the case. they normally end in june anyway, and they take three months recess, and it could slow things down, and it may be in the interim, they only grant four votes on the case that's they wouldn't be divided 4-4. just for your audience's sake, when a 4-4 tie occurs, it means that the lower court's precedence is not disrupted.
>> when that happens, send it back to the lower appellate level, does anybody get another bite at the apple because it wasn't decided at the top appellate level? >> i think that the parties in that particular case probably wouldn't. the decision was affirmed by an equally divided court for supreme court issues, there may be proceedings for the lower courts on those issues, but the particular issue that went to the supreme court would be lit gated at that case. but it sends a signal to everybody else that in the future, once the seat is filled on the supreme court, they may want to take it. >> so they indicated there was an issue there at the court by granting it in the first place. >> exactly right. >> so they didn't mean to end up with a 4-4 tie. how do you mechanically get the question in front of the justices when the court is whole again? >> well, so the parties in that
particular case again probably couldn't do it. but parties in a future case could. friedricks is a good example of how to do this in if you really want to. in friedrick's, the whole point of that particular lawsuit that a group wanted to challenge the court's precedence, recognizing constitutionality. and so they went to the lower courts and said, look, under the supreme court precedent, we lose, so we want you to set a precedent saying that we lose, so we appeal. we want to take it to the supreme court. and the case went like a rocket ship to the supreme court. you can do this for a case that's already pending or take case. >> it's unusual, because there, the sitting jexs is install to the lit gantz, we want to consider the case, the precedence in the case. not necessarily precedent.
>> jp, you've been overseeing amicus, siding with various petitioners in various cases, and. ones who have been heard by the court, and now there's someone who won't be able to vote. do they just go ahead with the missing man formation? >> well, there are a few options, they could decide the case not withstanding, the unanimous situation, great. and the lower court decision would be around. there are some other complicated scenarios, like fisher versus texas, the diversity case, where justice kagan is already recused. so you are looking at a scenario, where you have the justices tying, and then there's the option of holding over cakes for yet another term for reargument, where it's possible, and it's a mixed
history for it to happen. >> now, in an organization like yours, who figures out who the strongest petitioners are? which cases can make law? try to strategize around this? how do you regard an 8-4 court with this position? >> i think that it's a very troubling institution for the country. even beyond the cases that we have in the court now, it really transcends that. and the risk at the top of the show suggested that. this could throw into disarray high-profile issues, and there could be disarray where you have different laws, rules of law applying to different people in different parts of the country because there's no final binding decision bit supreme court. and that could be very practically problematic. >> if it goes down to the court where it was originally decided, it only makes law for that geographical space where
it originated, right? >> that's right, so you could have a conflict where in two different parts of the country they come to two completely different answers on an important thing like immigration, or other things that could being left unresolved by this supreme court because they continue reach a final non-tie results. >> with the works of the court, if it's an acceptable outcome. where the senate has plenty of days left in the session, and the president has plenty of time left in his term. stay with us. it's our "inside story".
story". i'm ray suarez. disorder in the court, this time on the program. my guests are still with me in washington, and you were just about to jump in. >> i was just going to say, i don't applaud the situation, but it's oftentimes when you have a full contingent on the court with different parts of the country for a protracted period. and they may want to try to resolve the conflict because neither side will prevail, and that's not unique. but when you're trying to word the situation, the republicans may find that they end up in 19 -- in 2007 with a democratic senate and a democrat in the white house, and they end up with a new replacement for scalia who is far more liberal side, blue than red. i remember in my experience,
in 1986, with president reagan, he nominated justice scalia to the beverage, and he won 9-0. and the republicans controlled the senate at that time. and strom thermon was the chairman. and one year later, there was a vacancy, and justice scalia, judge bork, he was nominated in 1987 by reagan, but the democrats controlled the senate and so he was defeat. so the idea that anybody really knows the dynamic of what it's going to be this year if they put off this confirmation hearing is something that could republicans. >> let's talk a little bit about the next term. can you imagine, jp, cases the next time around? going into october, or with the announced intention that fewer cases are going to be heard?
>> i suppose that's a possibility that could take fewer or less controversial casings but that could be problematic for every day americans facing problems, especially in the case of civil rights where we need these issues resolved in a timely fashion. just to back up for a second, are we really going to go two complete supreme court terms at full strength? that's a remarkable and unprecedented processing picture, and i don't think that we should accept that at face value. i'm reminded of a leader in a similar situation, where we come together in a bipartisan effort to come together in a constitutional evaluation and restore the protect to full strength. that man was ronald reagan, when he appointed justice kennedy to the bench in 1988. we have to step back and take a breath
here and we expect someone in would give a time fair hearing to whoever the president's choice is. >> it may send ped antic, but i'm not being that way. kennedy was appointed in 87 and confirmed in 88. and for the purposes of this conversation, with 11 months to go, that may be significant to some people. >> the congress of the supreme court suspended an entire term in 1982. and talking about a precedent, i don't applaud it, but that would be dangerous. >> so i kind of agree with -- on balance with bruce. what we're not looking at not a catastrophe. lower courts can cite issues, but that doesn't mean that this argument is okay.
that we should just ignore that there is a president in the white house that can nominate people, right? it doesn't lend any credence to the mcconnell position. the earth will keep spinning, but in regards to what will happen in the next term, we won't see fewer cases but we could see different cases. you're going to see fewer case that's the court is going to resolve, expect more bankruptcy cases, more patent cases and case that's don't usually break in those terms, because i think that the court will be very wary of these four-four situations where it can't actually resolve the issues that it's taking up, and next to that, the kind of interesting thing. for some of the lower court judges, it will be a situation of while the cat is away, let's see what we can get away with. >> since you weighed on it in one
way or another, if this is successful with mcconnell and grassley, is that something that you want to discourage? someday there will be a republican in the with a democratic senate. >> it's a position to certainly say out loud. it's something that sarah mcconnell said because the republic base wants to believe it's true, and that makes it useful for him to say. but on balance, to stand up and say we're not going to do our jobs because we don't think of this president as legitimacy, it's nuts. there's no precedent. to use scaliaisms, you can draw from his opinions and find many many adjectives that apply to the mcconnell position. >> here i am cutting bruce again before the break, but i'm sorry, we'll continue with you. everybody in the process has pretty big choices to make. the president has already made
one, to announce that he wants to seat or a sacrificial lamb? grassley and mcconnell have choices too. hearing or no hearing? for a jurist that you know you don't want to seat? and what strength or damage will these looming battles have? disorder in the court. stay with us. it's "inside story". >> what in god's name makes you think that you can handle stress, anxiety, depression... post-traumatic stress? >> the closest i got was sitting in my truck, gun in hand. >> who will save america's heroes? >> i wish he'd been able to talk to somebody. >> "faultlines". >> what do we want? >> al jazeera america's hard-hitting... >> today the will be arrested. >> ground-breaking... >> they're firing canisters of gas at us. >> emmy award-winning, investigative series.
>> welcome back to "inside story". i'm ray suarez. we're looking at what may end up being the long-term consequences of the death of associate justice scalia with 11 months left in the term of president obama. my guests are with me in washington. and bruce, you were just about to say... >> yeah, i think that the partisanship in congress is so extreme, they don't care, it's all about winning for that particular time and day.
and it's all driven totally bipartisanship, and it's a joke for the united states. they will be hoisted, and they don't care about that, it's quite it discerning. >> you said, jp, you don't think that we'll get to that. so what happens? outside pressure? the very fact that , the people that they want to please, they will be on the outside. >> they will feel pressure as this debate broils, but senator lindsey graham said that he's open to this.
and senator graphly started to walk back his position today. so for good reason, it would be unprecedented and unconscionable for the senate to not perform its duty in this context, and i think that the pressure will continue to build and affect the outcome here. >> a lot of times, certainly in the recent political eruptions, people have been talking about defending the powers of their branch. be does the president have to make a nomination just to show that he's still in charge? >> maybe, maybe not. if he says -- i think that would be a real white flag. and there may be other situations where he doesn't have time to vet someone. but this president has already maintenanced a lot of judges in the lower courts, in the dccircuit. he has vetted a lot of judges, loretta lynch for example.
and i think that he's eager to seek a third justice. >> what about the possibility that this first person out would be rejected? can you waste a shot and in fact waste a nominee by putting someone forward who is in very rejected? >> it's not pleasant for the nominee, but yes, there are a lot of bullets in the chamber so to speak. they have many many people who they would put up. there may be a strategic choice about who to put up first, because there will be people whose confirmation will likely be could not beingtentious, and it could be for election year fodder. there are many people you want to put up if you think that the fight will benefit you in the election rather than the confirmation on the court. and on the other hand, there are people you could put up, and i think that once want president names somebody, they will have a sense where the
courthouse is going in terms of playing it politically. >> ringing back the idea of veteran elected officials sitting on it. >> absolutely. that would be politically advantageous. any justice or experience whatsoever. creatures of the executive branch. kagan, thomas, roberts, and that has been very prominent. ever since dwight eisenhower. ever since someone appointed someone to the supreme court with congressional experience was harry truman and the result is i think a clear constitutional bias in favor of constitutional power, where the court kind of said the president, foreign affairs can do everything, and the statute that requires parents to have the option of identifying israel as the place of birth for a child born in jerusalem.
really n. my judgment, it's worth constitutional jury is prudence, vastly in favor of the executive branch, and i think amy, she sits on the senate judiciary committee. minnesota. >> and the senate, there's no history of any -- because past senators have been appointed to the supreme court, and every one of them goes through supersonic speed. >> before we go, jp, are there issues of particular interest to the political defense fund that are going to slow down, because we have half a minute of this vacancy? >> sure, there's a risk that this will draw out the process, or we still won't get a firm answer in constitutional or bill of right cases. voting rights, and future of diversity and higher education. and that's why we need a full nine jessops court to have the full complement and strength. >> i want to thank my guests.